Azar v Kathirgamalingan [2012] NSWCA 429

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Azar v Kathirgamalingan [2012] NSWCA 429 Hearing dates: 30 August 2012 Decision date: 18 December 2012 Before: McColl JA at [1]; Basten JA at [2]; Campbell JA at [17] Decision: Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: NEGLIGENCE - road accident cases - causation - where plaintiff disabled by psychological condition after accident - whether trial judge mistaken in finding condition pre-existed accident - whether trial judge mistaken in finding exacerbation of condition was not due to accident - no error demonstrated - no question of principle

COSTS - proceedings brought by tutor of legally incapable person - compromise of proceedings - indemnity costs - offer of compromise not accepted by tutor of incapable person - offers of compromise made to incapable person require the approval of the court in accordance with s 76 Civil Procedure Act 2005 - whether Uniform Civil Procedure Rules concerning offers of compromise and consequential costs orders apply to offers made to persons under legal incapacity - whether settlement subject to approval of the court creates binding agreement - approval provisions have the effect that an otherwise valid agreement does not create an actual compromise of proceedings instanter but does create a binding contract conditional on court approval - where agreement to compromise does not contain express requirement to apply for approval a term to that effect will be implied - UCPR applies with that proviso - normal costs consequences of unsuccessful party rejecting an offer apply